travel ban

What’s Next in the Legal Battle Over the Travel-Ban Block?

We’ll soon find out what the Supreme Court thinks about the travel-ban block. Photo: Paul J. Richards/AFP/Getty Images

The legal battle over President Trump’s travel ban has greatly intensified over the past several days, starting with a ruling by the federal judge, James Robart in Washington State, granting a temporary restraining order on several elements of the controversial executive order that Trump signed on January 27. As a result of that order, federal agencies have suspended their enforcement of the travel ban, and anyone with a valid U.S. visa is once again able to enter the U.S. — at least for now.

Vice-President Mike Pence vowed on Sunday that the White House will use “all legal means at our disposal” to reinstate the entry ban on refugees and the citizens of seven majority-Muslim countries. President Trump has repeatedly attacked the rulings against the ban, but has also maintained that his administration will emerge victorious. Earlier Sunday, however, Justice Department lawyers failed to obtain an emergency stay against Robart’s order in the Ninth Circuit Court of Appeals, pending the appeal they’ll finish filing by Monday. Regardless of how the appeals court decides to rule, it seems likely that the case will make it all the way to the Supreme Court, possibly within the week. Below is a look at the recent history and likely future of the legal battle.

What’s the story with the order that the Trump administration is appealing?
On Friday, U.S. District Judge James L. Robart granted a temporary nationwide restraining order against the travel ban, siding with the attorneys general of Washington State and Minnesota, who had sued to overturn parts of Trump’s executive order instituting the ban. Robart did not offer an opinion on the constitutionality of the ban, but nonetheless decided 1) that he thought the plaintiffs were likely to win based on their constitutional claims, 2) that blocking the ban was in the public interest, and 3) that allowing the ban to remain in place while the case was underway would cause Washington and Minnesota irreparable harm.

More specifically, Robart ruled that Trump’s executive order “adversely affects the States’ residents in areas of employment, education, business, family relations and freedom to travel,” and causes “significant and ongoing” harm to the two states’ tax bases and public universities.

Robart’s nationwide ruling is broader than any of the rulings that other judges have made against the travel ban. That’s unusual since district-court judges rarely issue nationwide orders, though such rulings are still within their legal power. In this case, Robart said he was concerned that “partial implementation would undermine the constitutional imperative of a uniform Rule of Naturalization, and Congress’s instruction that the immigration laws of the United States should be enforced vigorously and uniformly.”

Some of the language in Robart’s ruling echoed a Texas-based district judge’s 2015 nationwide injunction against the implementation of President Obama’s executive order granting protections to the children of undocumented immigrants.

Temporary restraining orders usually remain in place for 14 days unless the judge makes the order permanent by issuing a preliminary injunction at the trial court level, or the restraining order is overturned by a higher court – like at a court of appeals, which is where the Trump administration is currently seeking a stay. Traditionally, the government has to wait for a preliminary injunction before filing an appeal, but in this case, the Justice Department is arguing that, because of the nature of the original hearing and Robart’s judgment, the order more resembles a preliminary injunction and should thus be appeal-able. That potential technicality could be a problem for the government, however.

What case is the Trump administration making in their appeal?
In the appeal that Justice Department lawyers filed on Saturday night, they argued that Robart’s order should be overturned because it is improper for a lower court to substitute its judgment for the president’s and thwart an executive order, particularly since the order pertains to a potential national-security threat and courts do not have access to the classified information about terrorist threats that the president does. (For what it’s worth, Judge Robart seems to have challenged the Justice Department on this point and was clearly not satisfied with the answer.)

“As the President acted well within both statutory and constitutional authorization, the relief irreparably harms our system of government by contravening the Constitution’s separation of powers,” the Justice Department claimed.

The government also argued that Washington and Minnesota aren’t actually affected by the order and thus don’t have the standing to challenge it, insisting that the state’s arguments to the contrary are insufficient because they only identified “speculative harms” they would suffer on account of the ban. Put another way, as law professor and legal analyst Steve Vladek explains to CNN, the government believes that the executive order “is directed at non-citizens with no meaningful constitutional rights, and any impact on those with substantial ties to the United States is incidental,” and “given the special relief the government lawyers are seeking, it’s not clear [the states have] done enough to show that they are harmed by the district court’s order to anywhere near the same degree as immigrants from these seven countries are harmed by the executive order.”

“Judicial second-guessing of the President’s determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration,” the Justice Department said.

In addition, Politico explains that there was another recurring element in the brief:

The federal filing also makes no fewer than eight references to a Boston-based federal judge’s order Friday that took a dim view of the legal case against Trump’s immigration move and refused to extend a more limited restraining order other federal judges there imposed about a week ago. The Boston order is set to expire on Monday, according to the plaintiffs in that case. Several other judges have also put holds on aspects of Trump’s order, but none of those rulings was as sweeping as the one issued in Seattle.

Why didn’t the Trump administration win an emergency stay?
The Ninth Circuit Court of Appeals opted against an emergency stay because it said it wanted to see both sides legal briefs before making a decision (and that’s what it then asked for). Put another way, the court didn’t actually reject the request, it just wasn’t willing to go ahead and immediately stay Robart’s ruling before getting a look at both sides’ briefs.

So how long is the appeal process going to take?
Not very long, it seems. The Ninth appears to be fast-tracking the schedule, and already asked Washington and Minnesota to file by midnight Pacific time on Sunday, and the government to file their now-second brief by 3 p.m. Monday.

What’s next for the appeal?
Both sides will have filed their next round of legal briefs by Monday, and it’s likely the appeals court will issue their ruling as soon as possible after that.

If the Ninth District Court of Appeals rules against the government, what are the chances that President Trump or the administration accuses it of liberal bias?
Pretty good. The court is currently made up of one Carter appointee (William Canby Jr.), one Obama appointee (Michelle Friedland), and one George W. Bush appointee (Richard Clifton), and as Hot Air’s Jazz Shaw points out:

Out of the entire national bench, the Ninth has the reputation of being far and away the most liberal. (Some Republicans have been looking at ideas to break up the court this year.) If Trump’s opponents had any hope of shutting him down in the appeals process, this court was absolutely their best bet.

In addition, Trump is already attacking a federal judge who was appointed by George W. Bush, as well as the entire U.S. court system, so it’s unlikely anything will stop him from attacking a court ruling he doesn’t like, or the judges who made it.

Will the case go all the way to the Supreme Court?
Most likely. Legal experts seem to agree that whichever side loses the appeal will almost certainly ask the Supreme Court to review the judgment, and depending on how fast the appeals court rules, the SCOTUS Justices might be weighing in on that within days.

Just keep in mind, the Court is currently short handed and ideologically split thanks to the GOP’s nomination blockade on Obama, so if the court either opts against reviewing the case, or becomes deadlocked, that means the lower-court ruling would stand.

Will Trump’s attacks on judges and the judiciary system matter in the minds of other judges? Will the general confusion and unrest surrounding the implementation of the ban have an effect?
Maybe. Trump finished the weekend by tweeting that Judge Robart and the U.S. court system should now be blamed in the event of a future terrorist attack inside the U.S., and Trump seemed to question Robart’s legitimacy as a judge in another tweet on Saturday. Plus, it’s not like this weekend was the first time Trump has attacked a judge who has ruled against him. As far as what effect these comments could have, John Banzhaf, a professor at George Washington University Law School who opposes Robart’s ruling, told Politico that they absolutely could come back to bite Trump in the legal ass:

Although judges are supposed to be impartial and dispassionate, they’re also regretfully human, and the judiciary doesn’t take kindly to it when one of their own is being inappropriately attacked. […] In a very close call, this might just swing it a little bit.

Former Justice Department spokesperson Matthew Miller, who worked for the Obama administration, put it more bluntly:

The chaotic and confusing way the Trump administration rolled out the travel ban could also have an impact on the government’s legal credibility, as Lawfare’s Peter Spiro explained last week:

The atmospherics are consequential. First is the spectacularly sloppy way in which the ban was adopted. There isn’t even the pretense of the order having been properly vetted within the executive branch. That will offend judicial sensibilities—already evidenced by the district court orders [last] weekend—which start with procedural regularity. Although that won’t show up in any opinions, judges will approach the order with skepticism rather than obeisance.

Spiro also believes that the widespread criticism of the Trump administration’s stated rationale for the ban “could help shift the courts away from their historically cautious approach to anything implicating national security values”:

That is at the heart of jurisdictional barriers to considering foreign relations controversies, which is in turn at the heart of plenary power. Judges fret that they have an incomplete understanding of foreign relations. What’s more, if they get it wrong, they see a dramatic downside risk. Judges are unlikely to have that feeling here. Any educated observer can see the folly of Trump’s move. They won’t worry about getting it wrong, or about a downside risk, at least not as a matter of national security.

What about Judge Robart and the case in the district court in Washington State?
Robart ordered the states and the Justice Department to propose a schedule for filing additional legal briefs regarding whether to make the temporary order more binding, but he may delay that until after the appeals court weighs in. It seems that if a higher court doesn’t allow the government’s request say on technical grounds, Robart would need to make the temporary restraining order a preliminary injunction before the government could try for another stay.

What about the other court cases against Trump’s executive order?
There are a lot of them, at least 19 by the last count of the Civil Rights Litigation Clearinghouse, and it’s not yet clear how they will turn out. For a primer on the three basic arguments that most of these cases are using, read NBC News’ roundup here.

What’s Next in the Legal Battle Over the Travel Ban?